Endangered Gopher Frog

FILE - This Sept. 27, 2011, file photo shows a gopher frog at the Audubon Zoo in New Orleans. The nonprofit Pacific Legal Foundation wants the U.S. Supreme Court to overturn a declaration that Louisiana timberland is critical habitat for an endangered frog found only in Mississippi. The U.S. Fish and Wildlife Service says a network of ponds so shallow they dry up in the summer makes the 1,500-acre tract the only potential breeding ground outside Mississippi for dusky gopher frogs. (AP Photo/Gerald Herbert, File) ORG XMIT: NYJK402

Gerald Herbert

We might as well call the dusky gopher frog the dusky goner frog. It continues to spawn litigation, but it is only a matter of time before the supply of tadpoles dries up.

The U.S. Fish and Wildlife Service, which is trying to stave off the frog's extinction, says the only hope is for 1,500 private St. Tammany Parish acres to be converted into a breeding ground and has therefore blocked development.

The dusky gopher frog was last sighted in the St. Tammany tract half a century ago and is now restricted to a few ponds in Mississippi. It could not be reintroduced in St Tammany unless the landowners put out the welcome mat and agreed to restore the habitat of yore. But the owners, who figured to make up to $34 million from development before the land was designated as critical habitat, could not reasonably be expected to kiss the frog and put its welfare first.

Indeed, they filed suit challenging the Fish and Wildlife ruling that their land was essential to the frog's survival. They lost both rounds in court so far, and now the U.S. Supreme Court has been invited to weigh in.

Even if the court agrees to consider the appeal, its decision will not save the frog. A reversal of the lower courts, and a finding that Fish and Wildlife exceeded its authority, would be the frog's death warrant. But to uphold them would leave its fate to the tender mercies of the thwarted landowners, who clearly do not share the sentiments of Mrs. Leo Hunter, that character in the Pickwick Papers, who wrote the Ode to an Expiring Frog.

After the appeals court found in favor of Fish and Wildlife, Collette Adkins, a Center for Biological Diversity attorney, called on the landowners to end their legal challenges and co-operate with the restoration of the frog habitat in St. Tammany. Fat chance.

The feds have made no move to acquire the land and would presumably have to offer some financial inducement for the owners to consider adopting a hospitable approach and turning back the ecological clock.

That would be a complex and expensive process, for much has changed since the dusky gopher frog graced the St Tammany landscape, if graced is the appropriate word for a dark-skinned and warty critter that lives mostly underground, emerging only to breed in “ephemeral” ponds, that is ponds that dry up periodically and thus cannot sustain predatory fish.

Such ponds are still to be found on this tract, but other natural features required to sustain the frog have disappeared. Gone are the longleaf pine forests with their open canopies, and the groundcover of herbaceous plants that kept the frog moist as it moved from burrow to breeding point. Frequent fires are required to keep such habitat in top shape.

Not only has the dusky gopher frog not been seen here since the 1960s, but it could not survive in the current environment. The landowners currently harvest loblolly pines, which produce a closed canopy.

The Endangered Species Act empowers Fish and Wildlife to tag unoccupied land as critical habitat if “a designation limited to the present range would be inadequate” to avoid extinction. With about 100 left in the Mississippi wilds – and about 50 capable of breeding – the dusky gopher frog fits the bill; it is doomed unless it can recolonize St. Tammany.

Even then, its days may be numbered. As U.S. District Judge Martin Feldman noted in his opinion in favor of Fish and Wildlife, the frog's small numbers make it “highly susceptible to genetic isolation, inbreeding and random demographic or human related events.”

Feldman pauses at various points in his opinion to say, in effect, “Don't blame me; I didn't write the law.” He found that Congress had given Fish and Wildlife authority to act in a fashion that is “remarkably intrusive and has all the hallmarks of governmental insensitivity to private property.”

The current mood in Washington seems to favor property rights over environmental protection, so maybe the landowners will get some relief either from a Supreme Court ruling or a change in the law, which, as Feldman's opinion notes, currently favors conservation of species “whatever the cost.”

The landowners who are stuck with costs in this case will figure the sooner the pesky frog is officially a goner, the better.

Email James Gill at jgill@theadvocate.com.